Date: 20000608
Docket: IMM-1854-99
BETWEEN:
SAROGINIDEVI SELLATHAMBY
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] The applicant is a 48 year old Tamil woman from the northern region of Sri Lanka who claimed refugee status on the basis of membership in a particular social group, a Tamil from the north of Sri Lanka, and her perceived political opinion.
[2] The applicant said that she fled Sri Lanka because she feared the Liberation Tigers of Tamil Eelam (LTTE), the army, and the police.
[3] The applicant had made a prior claim for refugee status which was denied by the Refugee Division of the Immigration and Refugee Board ("the Board") in a decision dated July 28, 1997. That decision was based on a finding that she lacked credibility with regards to central aspects of her claim, and that she did not suffer the treatment she alleged at the hands of the Colombo police.
[4] On January 26, 1999, the Board heard the applicant"s second claim, and again found that the applicant was not a Convention refugee. The applicant seeks an order setting aside that decision.
[5] In determining that the applicant was not a Convention refugee, the Board gave the following reasons for its decision:
| Whereas credibility and Internal Flight Alternative (IFA) in Colombo were the issues examined to determine the previous decision, this panel bases its decision on a failure to claim elsewhere and current country conditions, with particular reference to the North of Sri Lanka and Jaffna in particular. The panel noted that the claimant was better prepared to answer the questions posed and she provided dates for events and experiences with greater consistency to the PIF narrative than had been the case at the previous hearing. However, there was no significant change in her circumstances with regard to her claim for refugee status. |
...
| Prior to making this claim at Fort Erie on July 29, 1998, the claimant left Canada and went to the United States of America where she remained for three months, April 1998 to July 1998. When asked why she did not make a refugee claim in the USA, she said that it was her intention to return to Canada because she had been advised that she could go to the USA for three months and then make a new refugee claim in Canada. She also said that while in Buffalo she met other Sri Lankan citizens who said that they too were planning to return to Canada to make a refugee claim. The claimant said that she did not want to make a claim in the USA, she was not aware that a refugee claim could have been made there and, furthermore, she did not seek information from anyone concerning this possibility. However, given her failed claim in Canada and the fact she stated that she feared persecution should she return to Sri Lanka, her failure to seek protection in the USA where she stayed for three months is significant. The panel does not accept her explanation for not claiming in the USA as being satisfactory and is of the view her actions demonstrate a lack of subjective fear. |
...
| It is the view of the panel, based upon reliable documentary evidence concerning current country conditions in the North, that the claimant does not have a well-founded fear of persecution and therefore could return to Sri Lanka. Given her age and profile, she would not be of interest to either the LTTE or the Sri Lankan army (SLA). |
[6] Applicant"s counsel asserted that the Board"s conclusion that the applicant"s failure to claim refugee status in the United States demonstrated a lack of subjective fear was made in a perverse and capricious manner and without regard to Canadian law which permits refugee claimants to make a new claim after being out of this country for 90 days.
[7] Applicant"s counsel also submitted that the Board erred in law by failing to consider whether the changes in country conditions in the North of Sri Lanka were sufficiently significant, effective and lasting.
[8] With respect to the conclusions of the Board that it did not accept the applicant"s explanation for not claiming refugee status in the United States and that her actions demonstrated a lack of subjective fear, at the hearing the applicant testified that:
| Counsel: That"s right. So, you have explained that you were still afraid to go back to Sri Lanka and what these people said to you would no doubt add to your fear or support your fear, so we understand why you wouldn"t want to go back to Sri Lanka, but the question is: Being afraid of going back to Sri Lanka, why not make a claim in the United States? |
| Claimant: I did not want to claim (inaudible). |
| Claimant: My only intention was to come back to Canada and claim refugee status. |
[9] The applicant also testified that:
| Mr. Chan: Let me just finish asking her one more question. Madam, are you saying that before you went to the U.S. and during the time that you were in the U.S., you were never aware that you could make a refugee claim in the U.S.? |
| Claimant: I wasn"t aware and I also didn"t want to claim any status there. |
[10] In my view, the conclusion that the applicant"s actions demonstrated a lack of subjective fear was one that was reasonably open to the Board on the evidence, and therefore, was neither perverse nor capricious.
[11] The conclusion that the applicant did not have a well-founded fear of persecution was a finding made in addition to the Board"s determination that the applicant"s conduct did not demonstrate a subjective fear of persecution. The Board based this conclusion upon documentary evidence concerning current country conditions in the north of Sri Lanka.
[12] In assessing any changes in an applicant"s country of origin, the determination to be made is whether the change is meaningful and effective enough to render any genuine fear of the applicant unreasonable. (See for example, Cuadra v. Canada (Solicitor General), [1993] F.C.J. No. 736 (F.C.A.)).
[13] The question of changed country conditions has been held to be a question of fact, not law: Yusuf v. Canada (M.E.I.), [1995] F.C.J. No. 35 (F.C.A.).
[14] The Board stated in its reasons that the Jaffna area in particular was "now firmly under government control and despite LTTE efforts to destabilise the region, civilian life is slowly returning to normal". The Board noted that "[t]he security presence is high and in July 1998, the University Teachers for Human Rights in Jaffna stated that while there are reported on-going cordon and search operations in the peninsula, there have so far been no reports of beating or mistreatment". Further, the Board referred to evidence before it that "[m]ost people in the area prefer the presence of the SLA [Sri Lankan army] to that of the Tigers since they admit that they can speak out against the government without the harsh reprisals they had suffered under Tiger control. A human rights office opened officially in Jaffna on January 8, 1998 and there is a general agreement among the Jaffna population that since the beginning of 1997, a clear improvement in the human rights situation has come about". [footnotes omitted]
[15] The Board, as a specialized tribunal, has been given the discretion to evaluate the evidence before it, including documentary evidence, and to make findings of fact on that evidence. While I may not have reached the same conclusion on the evidence that was before the Board, in my view, it was not patently unreasonable for the Board to have concluded that there was less than a serious possibility that the claimant would face persecution should she return to Sri Lanka.
[16] It follows that the application for judicial review should be dismissed.
[17] Counsel for the applicant submitted that a serious question of general importance should be certified as to whether or not the Board errs in drawing a negative inference with respect to an applicant"s subjective fear based on a failure to claim refugee status in the United States in circumstances where failed refugee claimants receive competent legal advice accurately advising them that they may go to the United States and return to Canada to initiate a new refugee claim after 90 days.
[18] Counsel for the applicant submitted that by drawing such a negative inference the Board exceeded its mandate by effectively nullifying Canadian law which permits refugee claimants to initiate a new claim after a 90-days" absence from the country.
[19] Counsel for the respondent opposed certification of the question on the ground that the Board"s conclusion does not effectively nullify Canadian law in that a failed refugee claimant may, while in the United States, initiate a claim there and if denied, may then return to Canada after 90 days to initiate a new refugee claim. Counsel for the respondent also objected to certification of the question on the ground that this issue did not arise out of the evidentiary record, and the issue is not ultimately determinative of the applicant"s claim.
[20] I agree with the respondent"s characterization of the proposed question. No question will be certified.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
June 8, 2000
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